Messina and Messina

[2013] FCCA 2153

FEDERAL CIRCUIT COURT OF AUSTRALIA

MESSINA & MESSINA [2013] FCCA 2153

Catchwords:
FAMILY LAW – Alteration of property interests – assessment of contribution – long period between separation and hearing – future needs – just and equitable order.

Legislation:  

Family Law Act 1975 (Cth), ss.75(2), 79

Bevan & Bevan [2013] FamCAFC 116
Stanford v Stanford [2012] HCA 52
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395

Applicant: MS MESSINA

Respondent: MR MESSINA

File Number: SYC 5069 of 2008

Judgment of: Judge Altobelli

Hearing dates: 9 September & 23 October 2013

Date of Last Submission: 23 October 2013

Delivered at: Sydney

Delivered on: 20 December 2013

REPRESENTATION

Counsel for the Applicant: Mr Gilbert

Solicitors for the Applicant: Lane & O’Rourke Solicitors

Counsel for the Respondent: Mr Greenaway

Solicitors for the Respondent: Thurlow Fisher Lawyers & Consultants

ORDERS

1. Within ninety (90) days of this Order, the Wife pay to the Husband the sum of $234,662.50 and at the same time the Husband do all things to transfer to the Wife his interest in the property at Property T, being the land comprised in Folio Identifier (omitted) (“the property”).

2. If the Wife fails or is unable to make the payment required in Order 1, interest will accrue on the said sum in favour of the Husband at the rate calculated in accordance with the Family Law Act, its Rules and Regulations and the parties are to do all things necessary to cause the property to be sold in accordance with the following Orders.

3. The parties do all such acts and execute all such documents as may be required to affect a sale of the property to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.

4. In the event that the property has not been sold by or before a date three (3) months from the date of the Wife’s failure to comply with Order 1, then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the matrimonial home upon the following terms:

   (a)The auctioneer shall be a real estate agent;

   (b)The reserve price shall, unless agreed upon by the parties, be as proposed by the Auctioneer.

   (c)That auction will take place within six months of the Wife failing to comply with Order 1.

5. Upon the completion of the sale proceeds of the sale be applied as follows:

   (a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.

   (b)The Husband receive $234,662.50 plus the interest calculated pursuant to Order 2.

   (c)Balance then remaining to the Wife.

6. Declaration that each party be the sole owner at law and in equity of all other property in their possession or control.

7. In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Circuit Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.

8. Any application for costs is to be by way of written submissions not exceeding 500 words.  The applicant for such Order must file and serve such submissions within 28 days, and the respondent must file and serve submissions in response within a further 21 days.

IT IS NOTED that publication of this judgment under the pseudonym Messina & Messina is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 5069 of 2008

MS MESSINA

Applicant

And

MR MESSINA

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in this case need the Court to decide on the division of their property.  The husband is 63 years old and describes himself as a (occupation omitted) who lives in a home unit at Property B with one of his adult children.  The wife is 53 years old, describes herself as a (occupation omitted), and lives in the former matrimonial home at Property T with the two other adult children.  The adult children are aged 25, 23 and 19.  The parties commenced cohabitation in 1988, married in 1996 and separated, albeit under the same roof, at some time between 2005-2007 (nothing turns on this).  Certainly by 2007 the husband had left the former matrimonial home.  The length of time that has elapsed since separation has greatly increased the complexity of resolving this matter.

Background

1. This is a second marriage for both parties.  They both brought assets into this relationship.  It is a common ground that the former matrimonial home was purchased in 1991 as tenants-in-common with the wife holding a one-quarter interest, the husband three-quarters.  There is an irresistible inference that this reflects the contribution they each made to the purchase price, and it is common ground this money was derived from their prior property settlements.  In addition, it is clear that the husband had accumulated some superannuation entitlement before cohabitation.  During their cohabitation and marriage they engaged in a number of financial transactions, the details of which are unnecessary to set out in order to determine the dispute. 

2. It is common ground that after separation, though not necessarily before the husband physically left the former matrimonial home, the husband assisted their oldest son, X, to purchase a home unit at Property B.  One of the issues in this case is whether, and if so in what way and to what extent, that property is to be divided between the parties.

3. After separation, the husband had available to him long service leave entitlements, superannuation and savings which he used for various purposes.  Another issue in this case is whether, and if so to what extent and in which manner, those assets should be divided between the parties.

4. It is common ground that the three children of marriage enjoyed a first class private school education at great cost to the parties.  The evidence clearly demonstrates they both wanted this for their children even though it was beyond their means.  Somehow, by sacrifice and hard work, they made it possible.  To the extent that either party sought to somehow retrospectively characterise this expenditure as wasteful, it was both undignified and disingenuous.  Given their commitment to the children getting this education both parties are, in this Court’s opinion, estopped from asserting that the expenditure was unreasonable.

Contentions and Issues

1. As has been foreshadowed above, and as will be discussed below, there are significant issues about the balance sheet.  The husband contended that if his version of the balance sheet was accepted, contribution should be assessed at 55% in his devour, mainly attributable to a greater initial financial contribution, and then there should be a future-needs adjustment in his favour of a further 5%.  However, if the balance sheet were to be as contended by the wife, the future needs adjustment would be greater.

2. The wife contended that, on her version of the balance sheet, the final outcome would be 50:50.  In short, her argument was that by the end of a long marriage contributions should be assessed as equal, as should future needs.

The Evidence

1. The husband relied on the following documents:

   a)Response filed 19 November 2008;

   b)Financial Statement filed 19 November 2008;

   c)Affidavit of Mr Messina filed 16 December 2009;

   d)Financial Statement filed 4 July 2012;

   e)Affidavit of Mr Messina filed 26 April 2013; and

   f)Affidavit of (omitted) filed 30 April 2013.

2. The wife relied on the following documents:

   a)Amended Initiating Application filed 17 August 2012;

   b)Affidavit of Ms Messina filed 30 April 2013; and

   c)Financial Statement filed 30 April 2013.

3. Both parties gave oral evidence and were cross-examined.  Both were quite unimpressive witnesses.  Both were unresponsive and evasive at times.  At the end of the evidence, the Court was left with the strong impression that it was still not fully appraised of the past, present and future financial circumstances of the parties.  Both parties had ample opportunity to call evidence from the oldest child, X, relevant to the nature, if any, of the husband’s interest in the Property B unit in X’s name.  Both declined to do so.  If there is any imprecision in the alteration of property interests of the husband and wife, be it upon their own heads.

The Applicable Law

1. This is an application under s.79 of the Family Law Act 1975 which relevantly provides:

   Alteration of property interests

   (1)  In property settlement proceedings, the court may make such order as it considers appropriate:

   (a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

   (b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;

   including:

   (c)an order for a settlement of property in substitution for any interest in the property; and

   (d)an order requiring:

   (i)either or both of the parties to the marriage; or

   (ii)the relevant bankruptcy trustee (if any);

   to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

   (2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

   (4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

1. Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:

   (2)The matters to be so taken into account are:

   (a)the age and state of health of each of the parties; and

   (b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)commitments of each of the parties that are necessary to enable the party to support:

   (i)himself or herself; and

   (ii)a child or another person that the party has a duty to maintain; and

   (e)the responsibilities of either party to support any other person; and

   (f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

   (j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)the need to protect a party who wishes to continue that party's role as a parent; and

   (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

   (n)the terms of any order made or proposed to be made under section 79 in relation to:

   (i)the property of the parties; or

   (ii)vested bankruptcy property in relation to a bankrupt party; and

   (naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)a party to the marriage; or

   (ii)a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. In Bevan & Bevan [2013] FamCAFC 116 the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52 which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:

   a)Identify and value the property, liabilities and financial resources of the parties; and

   b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and

   c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and

   d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.

2. The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.

3. Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.  This is not inconsistent with step one in Hickey. A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. It is no longer appropriate to notionally “add-back” this property. This disposed of property may still be significant, however, and needs to be considered as part of the history of the marriage, as well as a s.75(2)(o) consideration. As the Full Court said in Bevan, such disposals must be dealt with carefully.  In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it.  Maintaining jurisprudential rigour, transparency and accountability may well be challenging in the era post the demise of the traditional add-back.

Balance Sheet Issues

1. Doing the best the Court can, the agreed balance sheet in this case appears to be as follows:

Assets
1	Matrimonial Home at Property T	H & W	550,000
2	Audi Motor Car	W	10,000
3	Household Contents	W	3,000
4	Jewellery	W	600
5	(omitted) Shares	H	307,200
6	Puegeot Motor Car	H	6,000
7	Property B	X	325,000
8	Superannuation	W	282,950
Total			$1,484,750
Liabilities
9	(omitted) Bank Personal Loan	W	26,097
10	(omitted) Bank Personal Loan	W	12,964
11	(omitted) Credit Card	W	16,992
12	(omitted) Credit Card	W	22,367
13	(omitted) Credit Card	W	22,519
14	Income Tax	H	5,696
15	Loan (omitted)	H	10,000
16	(omitted) Credit Card	H	5,300
17	(omitted) School Fees	H	8,000
Total			$129,935

1. Item 7, the Property B unit, is contentious, and will be discussed below.  It is common ground that item 5 represents what is left of the husband’s superannuation entitlement and employment related benefits, at separation.  There are other issues in contention that will be discussed below.

The Property B property

1. The husband contends that this should not appear on the balance sheet as he has no interest in it, legal, equitable, or otherwise.  The wife contends that it should appear on the balance sheet at its full value, $325,000.

2. The following is clear from the evidence.  The husband used $200,000 of funds available to him at the date of separation or shortly thereafter to assist his son X to acquire and then pay off the Property B property.  He has lived there with X since it was acquired in 2007.  Until the mortgage was actually paid off by the husband, he made the mortgage payments.

3. He contends that whatever he paid was a gift to his son.  Moreover, he contends that it would be inequitable to him to have this payment somehow brought into account in the present context because the effect of the payments he made was to provide him with reasonable accommodation for 6 years, whilst the wife enjoyed occupation of the former matrimonial home for the same period at no expense. 

4. The wife contends that the husband has an equitable interest in the property which should be quantified at least in the sum of what he contributed, that is $200,000.

5. The Court rejects the husband’s contention.  The present exercise is about establishing the pool of assets available for division but is not about assessing post-separation contribution, or the reasonableness of the use of assets and resources to which parties are jointly entitled, in the post-separation period.  It would be artificial in the extreme, let alone unjust to the wife, to adopt the approach contended for by him. 

6. The Court rejects the wife’s contention.  There is no evidence of a trust.  Curiously, the husband was not even cross-examined about the existence of a trust.

7. The Court nevertheless accepts that the amount the husband paid by way of capital payments into the Property B property, that is $200,000, should appear on the balance sheet. Given the paucity of the evidence, the Court choses to characterise this a chose-in-action that either the wife or the husband have against X, the value of which is at least $200,000. Even if the Court were wrong in adopting this approach, the outcome would be, or could be made the same by treating this as a s.75(2)(o) consideration. Item 7, therefore, should be described as a chose-in-action benefiting primarily the husband, and valued at $200,000.

Sale Proceeds of (omitted) Shares

1. There is a dispute about item 5.  The wife contends that the Court should take into account the sale proceeds of (omitted) shares, owned by the husband and sold 10 August 2012 for $156,941, in addition to the amount conceded by the husband at item 5.  The wife’s argument really is in the nature of add-back.  The husband’s evidence about the (omitted) shares is quite clear.  Their origin is his superannuation entitlements collected in 2012.  All of the sale proceeds of these shares have gone.  None of it was used to buy the shares already represented at item 5.  All of the money, he contends, was used to pay for holidays ($35,000), paying bills including school fees, other luxury expenses and legal fees (about $50,000).

2. Whilst it is appropriate to take the sale proceeds of the (omitted) shares into account, following the High Court’s decision in Stanford v Stanford, and the Full Court’s decision in Bevan & Bevan (both discussed above) it is inappropriate to treat this as a balance sheet issue, or as an add-back. It should be treated as a s.75(2)(o) consideration. The disposal by the husband of this property, in existence then, but no longer in existence now, is part of the history of this marriage. It is convenient to deal with this issue now, and then return to it in assessing s.75(2) factors. Even a s.75(2)(o) consideration can be assessed as to value. It is unfair to the wife that the husband used money to which should would have been entitled to make a claim, to pay his legal costs. It is unfair to the wife that, likewise, he should spend money on an expensive holiday for his partner and himself. However, it is not unfair to the wife, and not unreasonable in the circumstances, if the husband used some of the money to pay school fees for their children, or for his living expenses, even paying for his partner to assist in his care on a daily basis. Doing the best the Court can, therefore, whilst there is no adjustment to item 5, a s.75(2)(o) consideration assessed at $100,000 should be considered as something he has had the exclusive benefit of, but to which she would otherwise have had an entitlement.

Liabilities

1. Each party puts into contention the liabilities the other claims to be included in the balance sheet. Each contends that these are post-separation liabilities, the inclusion of which unfairly distorts the s.79 adjustment process from their perspective. The determination of this issue is rendered much more difficult by paucity of evidence, and the period of separation under the same roof when they may well have been a continued mixing of income and expenses. Neither party has satisfied the Court that the liabilities they claim either existed at the date of separation, or was somehow referable to the marriage. Exhibit A4 does not assist the wife in this regard. None of the liabilities should appear on the balance sheet. All of the liabilities are matters taken into account in assessing contribution post-separation, and under s.75(2).

Conclusion on Balance Sheet

1. Having regard to the above, the Court finds the balance sheet to be as follows:

Assets
1	Matrimonial Home at Property T	H & W	550,000
2	Audi Motor Car	W	10,000
3	Household Contents	W	3,000
4	Jewellery	W	600
5	(omitted) Shares	H	307,200
6	Puegeot Motor Car	H	6,000
7	Property B – chose in action	H	200,000
8	Superannuation	W	282,950
Total			$1,359,750
Liabilities
Total			$0

Contribution

1. In 1991, quite early in this relationship in a financial sense, the parties’ respective property settlements were applied towards the purchase of the former matrimonial home.  It was purchased unencumbered for $145,000 with each contributing, the Court finds, one-quarter by the wife, three-quarters by the husband.  The Court does not accept the wife’s contention to the contrary.  Clearly his contribution was three times greater than hers.  However, at the end of a long marriage, the husband’s counsel quite properly submitted that this disparity could not result in an assessment of contribution in his favour greater than 55:45.  The Court accepts this submission.  Many years of different and diverse contributions of both parties means the husband’s greater contribution ab initio must be recognised, but not in its original proportion. 

2. Neither party contended that, putting the above matter aside, contribution should be assessed as anything other than equal by the time of separation.  That is unquestionably so.  Both parties worked exceptionally hard in diverse roles. 

3. As at the date of separation, therefore, contribution should be assessed as 55:45 in the husband’s favour.

4. It was implicit, if not explicit, in each party’s case, that the contribution they made in the post-separation period must be closely examined.  Indeed it is impossible to do justice and equity without doing so, particularly having regard to the long period of separation, and the financial transactions that took place in this period.  What is clear from the evidence about the post-separation period is that the wife incurred significant debts attributed to living expenses, which she still bears today, whereas the husband had considerable assets and resources available to him, a significant part of which funded his living expenses.  His own evidence indicates that by February 2012 he collected entitlements totalling about $485,000 when he left his employment.  Of course the Court recognises that some unspecified part of that is attributable to before the marriage (superannuation) and after separation (superannuation, some long service leave, perhaps some compensation payments) but the paucity of the evidence makes it impossible to say precisely how much.  Some of this the husband used and either because of luck or wise investment, it appreciated in value.  Some was used to pay legals and holidays.  Some of it was used to meet reasonable living expenses and pay school fees.  What is clear though is that whilst his financial position improved, hers did not, indeed it deteriorated.  Whilst it can’t be said that she contributed to the increase in value of the amount he had at separation, likewise it would be unjust and unequitable to her to ignore the debts that she incurred to sustain the family in this period.  True it is that she had rent-free accommodation in the former family home, but she also had a modest income, the primary responsibility to care for children, some of whom were in their minority in this period, and she had limited child support because (quite properly) the husband was paying the private school fees. 

5. In the end, the Court choses to make no adjustment in favour of either party for post-separation contribution. If one were hypothetically to be made it would be in favour of the wife, not the husband. A less precise, but perhaps more just and equitable manner to account for this, is to treat the wife’s post-separation debts as referrable to her reasonable living expenses, and consider this under s.75(2).

6. The final assessment of contribution is 55:45 in favour of the husband.

Assessment of s.75(2) Factors

1. The effect of the husband’s contention, particularly since the Court has found for a balance sheet contrary to his case, is that there should be an adjustment in his favour of at least 5%, and ideally more. Counsel for the husband submitted that this adjustment is based on the accepted evidence of the husband’s poor health, the age and income disparity as between the wife and himself, and the potential benefits that the wife might receive on retirement through her defined benefit superannuation entitlement. As regards the last point, the evidence does in fact establish that when the wife does retire, whenever that will be, she has the option of taking her benefits as lump sum, pension, or both. She did not seem aware of this, or feigned ignorance about it. The matters raised on his behalf would ordinarily call for an adjustment in his favour of at least 5%, but for the s.75(2) considerations operating in the wife’s favour.

2. The s.75(2) considerations in the wife’s favour are significant. There is the s.75(2)(o) adjustment for what might in previous cases have been called an add-back in respect of the premature distribution of $100,000 worth of (omitted) shares. Of course her adjustment would only be in respect of half of that. In addition, the Court cannot ignore the significant debts she incurred in the post-separation period, as discussed earlier in these reasons. In all the circumstances the Court finds that the competing s.75(2) considerations off-set each other.

Just and Equitable

1. It is clearly beyond doubt that an order under s.79 must be made. Neither party contends to the contrary. Is a s.79 order that provides for a 55:45 split in favour of the husband just and equitable? For the reasons set out above, the Court believes the answer to this question is in the affirmative, having regard to the effect of the orders on each party.

2. The net property pool is $1,359,750.  The husband’s entitlement of 55% is valued at $747,862.50.  The assets that he already controls have a value of $513,200.  He is entitled to be paid $234,662.50 from the wife.

3. To cross-check, the wife’s 45% share is valued at $611,887.50.  She has assets in her control of $846,550 including the former matrimonial home which she would like to retain.  On this basis she needs to pay to the husband $234,662.50.  She will have three months to raise this money failing which the home will need to be sold, and interest will commence to accrue in the husband’s favour. 

4. In all the circumstances, this outcome is as equitable as the facts and circumstances of the parties permit.  The husband’s lifestyle appears not uncomfortable.  He has support from his partner.  He lives with his son.  He has no dependents.  Once he pays the remaining outstanding school fees, a matter he committed to do in evidence (without expecting any contribution from the wife) his debts will be minimal, and certainly manageable having regard to the payment he will get.  The wife’s lifestyle is also not uncomfortable.  She continues to work.  She appears in good health.  She will have secure accommodation.  Her retirement benefits are generous and will continue to increase in value.  Now that the children have grown up and school fees are no longer a massive burden they once were for this family, they should enjoy reasonably comfortable lives in the future, at least in a financial sense. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  13 December 2013